Attorneys, Judge Argue Mother's Rights

Fetus Could Die Without Surgery

A group of Legal Aid attorneys want to force a West Palm Beach woman to give birth surgically because the fetus faces certain death if delivered vaginally, as she has chosen.

But a Palm Beach County judge on Monday said the attorneys must first show why it's any of Legal Aid's business how Dorothy Tolbert, 33, chooses to give birth to her 11th child, due next Monday.

Doctors at Columbia Hospital, where the woman sought prenatal care, predict the fetus has a 99 percent chance it will not survive if delivered vaginally because Tolbert's placenta has dropped to block her birth canal.

And the mother's risk of death during delivery without Caesarean section is estimated at 25 to 75 percent.

Circuit Judge Richard Burk said only the state, through State Attorney Barry Krischer, can attempt to override a patient's decision to refuse life-saving treatment. No one from Krischer's office showed up on Monday.

"That may simply mean he's washed his hands of it," Burk said.

Last Friday, Krischer's office made a cursory attempt to intervene in the case under state laws that prevent parents from neglecting and abusing their children. But Burk said a fetus was not legally recognized as a person by state law and didn't have any rights.

Krischer was out of town on Monday and could not be reached for comment. His office referred questions to the Juvenile Advocacy Project of the Legal Aid Society of Palm Beach County.

Burk set a hearing for today to hear the group argue why it has the right to make Tolbert give birth by Caesarean section against her will.

State laws clearly are against anyone who wants to intervene in the case, said Tolbert's attorney, Judith Migdal-Mack.

"You're talking about a mother who has the right to choose how she has her baby," Migdal-Mack said. "Her own body is telling her she can have her baby normally."

After giving birth 10 other times, Tolbert, who has children ranging from age 1 to 13, is in a position to know what is happening inside her, Migdal-Mack said.

The woman also objects to surgery because of her religious beliefs, Migdal-Mack said. Tolbert believes God will take care of her and the baby during birth and doesn't think the surgery is necessary.

"She's afraid of the Caesarean. What's to say that won't be the thing that kills her," Migdal-Mack said.

And if things go badly during birth, the woman could always reconsider surgery, but it should still be her choice, Migdal-Mack said.

Florida laws, which recognize the right to privacy in its constitution, are clearly on Tolbert's side, legal experts said.

Even in less invasive procedures, such as a blood transfusion, the courts have cautioned against intervention.

In a Fort Lauderdale case, doctors at Memorial Hospital in Hollywood successfully petitioned a Broward County judge to order a blood transfusion for a woman who refused the treatment after a Caesarean birth.

Patricia Dubrueil's life was threatened because of the massive amounts of blood she lost in the surgery, but she refused the transfusion because of her religious beliefs as a Jehovah's Witness.

The Florida Supreme Court found the hospital did not have the right to intervene, only the state attorney. And the prosecutor must show why the state's interest is greater than the person's rights to privacy and to make decisions about their own body.

Robyn Blumner, executive director for the American Civil Liberties Union in Florida, said the idea that the government can force someone to undergo risky surgery conflicts with basic rights. An attorney for the ACLU appeared at Monday's hearing in support of Tolbert's position.

"The government is using this woman as an incubator for her child," Blumner said. "It would be putting her health and life at risk."